Court Voids Restrictions on Adult Channels

WASHINGTON — The Supreme Court struck down a federal law Monday that was intended to shield children from seeing the fuzzy images of sexually explicit programs on older cable television systems not equipped with signal blocks.

Noting that few parents had asked their cable operators to block the channels entirely, the justices concluded that the problem does not warrant a law that bars tens of millions of adults from seeing the Playboy Channel and similar programs during daytime hours.

The decision frees cable TV operators to carry signals of sexually explicit channels all hours of the day. But unaffected by the ruling is another provision of the law that requires cable operators to make available to subscribers without charge devices that will block unwanted signals.

Sen. Dianne Feinstein, (D-Calif.), who sponsored the legislation struck down by the court, said that the decision "simply ignores the reality of parenting in the 21st century. Parents often do not see what their children are watching and it is unrealistic to assume that parents will realize that there is a problem."

But the court majority argued in a 5-4 decision that the 1st Amendment protection of free speech outweighs the laudable cause of protecting children from pornography.

On a busy day, the court issued several other important rulings. In one, it shielded state agencies, public colleges and state-run hospitals from being sued by whistle-blowers, saying that federal law does not apply to them. In another, it ruled that auto makers could not be sued for failure to put air bags in cars before being required to do so in 1989.

The cable TV case concerned homes that pay for cable services but do not subscribe to sexually explicit programs. On most older cable systems, these channels are not blocked entirely but come through as scrambled signals. This is known in the industry as "signal bleed."

Feinstein sponsored the 1996 law after she heard complaints from parents who came home to find their children watching the fuzzy images of sexually oriented cable TV channels. Some parents said that they could easily observe sex scenes and hear various groans and moans.

On the Senate floor, Feinstein offered two amendments that became part of the Telecommunications Act of 1996. The first said that cable operators must offer subscribers, free of charge, devices to block unwanted signals.

Her second went further and said that cable operators whose systems cannot "fully scramble . . . sexually explicit adult" channels may not carry those channels before 10 p.m.

The California senator said that this measure was needed because many parents would not ask for the blocking devices.

She was right. Fewer than 1% of households asked for blocking devices, the court noted.

Nonetheless, two-thirds of the nation's cable operators were forced to drop their daytime showings of sexually explicit channels because of the new law, according to an industry survey. Playboy Enterprises estimated that it would lose $25 million over a decade and its lawyers challenged the law on 1st Amendment grounds.

Two years ago, a three-judge panel in Delaware struck down enforcement of the rule. The Clinton administration appealed, arguing that the government must try to protect minors from exposure to explicitly sexual material, even when their parents are not paying attention.

However, the Supreme Court said Monday that neither the problem of "signal bleed" nor inattentive parents justifies a national law restricting the 1st Amendment rights of adults.

"All content-based restrictions on speech must give us more than a moment's pause," said Justice Anthony M. Kennedy. Parents have reacted to this problem "with a collective yawn," and the "government has failed to show [that the daytime blackout rule] is the least restrictive means for addressing a real problem."

He added: "This case involves speech alone; and even where speech is indecent and enters the home, the objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative."

A lawyer for Playboy praised the court for closely examining the facts in this case. "This decision reaffirms the important principle that the government has to prove its case before it can restrict speech," said Robert Corn-Revere, who represented Playboy. "It also puts the control in the hands of parents and individuals, rather than allowing the government to choose for all of us."

The case (United States vs. Playboy Entertainment Group, 98-1682) split the court in an unusual way. Kennedy's opinion was joined by Justices John Paul Stevens, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg.

The dissenters were led by Justice Stephen G. Breyer and included Chief Justice William H. Rehnquist, Sandra Day O'Connor and Antonin Scalia.